the bespoke trust protector - tailoring the protector's role

THE BESPOKE PROTECTOR

Matthew T. McClintock, JD, TEPWealthCounsel LLCmatt.mcclintock@wealthcounsel.com

Tailoring powers and duties to the strategy’s demands

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• Why use protectors?• Legal run-down

– Statutes and cases– Protectors and Advisors under the model

Uniform Trust Code– Drafting freedoms (optional v. mandatory)– Fiduciary / nonfiduciary framework

Agenda

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• Practical issues– Who should serve?– Individuals, committees, or entities?– Compensation models– Dividing powers– Liability, indemnity, & protecting the

protector

Bonus Agenda (if we’re really lucky)

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Thesis:

If we fail to bring logic and discipline to the role of protectors and advisors,

bad cases will do it for us.

(And we probably won’t like the results.)

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HOW DO YOU USE TRUST PROTECTORS?(AND WHO DO YOU NAME?)

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WHY NAME A PROTECTOR?What are we trying to achieve?

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Person (or entity) selected by settlor to represent settlor’s interests (intent)

“Living embodiment of the settlor.”Professor Stewart E. Sterk

Outline distributed with permission

Why have a protector?

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• Possible purposes:– Ensure efficient administration– Ensure trustee responsiveness– Ensure administration carries out settlor’s intent– Adjust plan – even dramatically – to account for changed

circumstances– Remove administrative / interpretive decisions from

judiciary

Why have a protector?

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• Allow third party to exercise powers over a trust– Independent of trustee, beneficiaries, or others

• What kinds of powers?– Affirmative– Negative– Quasi-trustee– Quasi-judicial

• “Purpose” differs by strategy objectives

Why have a protector?

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Describe purpose within the document.– Include clear statement of purpose/intent– Enumerated powers & provisions further

define the role

Why have a protector?

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Modified “Purpose” statement

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• Settlor did not vest title in protector; merely granted discrete powers– Remember, “title” is vested in trustee for benefit of

beneficiaries• Purpose of protector’s powers:

– Guide trustee behavior– Modify trust as circumstances demand– Accommodate changes not foreseen by settlor

• Primary function: exercise judgment on behalf of settlor…even when beneficiaries may prefer otherwise

Agency nature of position?

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• Statement of settlor’s intent to guide protector– Why did settlor establish trust (as opposed to

distributing property outright)?• Preservation of capital?• Preservation of particular assets?• Insulate beneficiaries against creditor claims?• Minimize tax impacts?

– Are all taxes equal, or is it more important to mitigate one form of tax at the expense of another? (e.g., capital gains or fiduciary income v. transfer tax)

• Other reasons?

Documenting the protector’s role

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• Outline powers, circumstances for acting / not acting, scope, duty, compensation, term of service

• Outline to whom duties are owed:– Settlor, in preserving and reflecting expressed

intent– Beneficiaries, in providing recourse with trustee

Documenting the protector’s role

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• Defining how & when protector acts• Establishing method of compensation

– Compute different from trustee’s fee structure, especially for any powers held in nonfiduciary capacity

Documenting the protector’s role

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POLICING THE PROTECTOREnsuring accountability

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Personal loyalty?Moral duty?

Market forces?Legal liability rules?

How do we know the protectorwill do his job?

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Personal loyalty

• Arises only if there’s a personal relationship between protector and settlor.

Moral duty

• Lost its impact when “feofee” clergy was replaced by non-clergy trustee

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• Dearth of “professional” protector services– Virtually no meaningful competition– Insignificant incentive for protector to act?

• Consider...– Contract between settlor and protector service provider– Agreement inures to the benefit of…?

• Settlor & “estate” as to settlor’s intent?• Beneficiaries as to efficient and proper administration by

trustee?

Market forces

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• Liability exposure should depend on…– Nature of protector’s power– Trustee’s liability for acting according to

protector’s input– Provisions of the governing instrument– Whether the trust & beneficiaries are

otherwise adequately protected

Legal liability framework

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• Defer to trustee’s judgment most of the time• Intervene only when protector believes (or is

petitioned to investigate?) trustee has abused discretion or violated a fiduciary duty

• BUT…If the protector is not the same as a trustee, the scope of their liability should not be the same

McClintock’s Philosophy ofProtector’s Role

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DOMESTIC CASES & STATUTESThe legal landscape

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Domestic cases

Trust advisor is a “quasi-trustee.”

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• Delaware RLT by Florida settlor. Estate dispute among heirsKey issues: Choice of laws; exercise of power of appointment

• Directed trust; Wilmington Trust Co. as trustee to manage, invest, and reinvest trust corpus

• Certain trustee powers exercisable only with consent of trust’s investment advisor:– Sell trust assets– Invest proceeds from sales of trust property– Participate in mergers & reorganizations of corporations held as

corpus

Lewis v. Hanson128 A.2d 819 (Del. 1957)

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• All other trustee powers exercisable without advisor’s action

• Trust advisor referenced as fiduciary / quasi-trustee– (Gathright’s Trustee v. Gaut, 276 Ky. 562, 124 S.W.2d

782; Restatement of Trusts §185, Cmt. C; 2 Scott on Trusts, §185)

• Requiring advisor’s joinder not unlike appointment of co-trustees

Lewis v. Hanson128 A.2d 819 (Del. 1957)

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• Hawaii revocable trust deed executed by married couple• Directed trust; investment advisor directed voting of

stock• Third party advisor given trustee’s proxy to vote stock• Provision held as valid & not contrary to public policy

“Of course, the person upon whom such power is conferred, is operating in a fiduciary capacity.” (Citing 2 Scott, Trusts, 2d. ed., §185)

Harrington v. Bishop Tr. Co., et al.43 Haw. 277 (Hawaii 1959)

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Trust included individual (descendant) beneficiaries and charities• Committee of advisors could specify charities• Committee comprised of beneficiary, a

family friend, and corporate trustee• Distress clause could be triggered by

committee to increase distributions to individual beneficiaries

Crocker-Citizens National Bank v. Younger4 Cal.3d 202 (Cal. 1971)

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• Individual beneficiaries loaded committee to trigger distress clause; bank objected

• (Held) Trustor did not intend to vest committee control in individual beneficiaries; committee to be disinterested

– “…rules pertaining to the rights and duties of trustees generally would be broadly applicable to trust advisors or other persons holding trust powers...”

– “Trust advisers with powers of direction must be considered fiduciaries…”

• Self-appointment by beneficiary was invalid

Crocker-Citizens National Bank v. Younger4 Cal.3d 202 (Cal. 1971)

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Heirs of Carnation Milk Company fortune (3 identical trusts).Key issues: Interpretation of intent to preserve corpus v. distribute to beneficiary• Trustee, acting with “advisors,” could invade income & principal for

beneficiary• Advisory board (of 2) included beneficiary (or lineal male descendant) and a

non-family member• At least one of the advisor’s joinder required for most trustee actions,

including invasion of principal and distributions to beneficiary• Advisor direction legally binding on trustee• Advisor received notice of all significant actions concerning trust

Fiduciary nature of advisor’s role not in issue, but the breadth & nature is clearly “quasi-trustee.”

Stuart v. Wilmington Trust Co.474 A.2d 121 (Del. 1984)

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• Trust protector held three specific powers:– Remove a trustee– Appoint successor trustee– Resign as trust protector

• Trust specified protector’s powers held in fiduciary capacity. (Sec. 5.4)– Not liable for action taken in good faith– No duty to supervise trustee

Rob’t T. McLean Irrevocable Trust v. Ponder

2013 WL 5761058 (Mo. App. S.D. 2013)

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• Trust established for quadriplegic beneficiary following court settlement

• Trustee spent bulk of trust estate within 18 months

• Plaintiff unable to establish damages due to protector’s delayed exercise to remove trustee

What SHOULD protector have done?

Rob’t T. McLean Irrevocable Trust v. Ponder

2013 WL 5761058 (Mo. App. S.D. 2013)

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• Trust advisor always fiduciary• Trust protector (McLean case) was

fiduciary by trust terms

Does this mean they’re the same???

Domestic cases 100% fiduciary

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• 22 states specifically recognize protectors• 17 require the protector’s powers be

specifically enumerated• Many reference protectors & advisors with

little clarity• Contemplated in UTC §808 (Powers to

Direct)

Statutory recognition of protectors & advisors

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• Disparity in international law:– BVI = Not a fiduciary

Trustee Ordinance §86(3)(1961), amd. 1993

– Cook Islands = Not a fiduciary Cook Islands International Trusts Act

Part IV, §20– Belize = Fiduciary to the beneficiaries OR

to the purposes for which the trust is created.Belize Trusts Act 1992 §16(5)

(emphasis added)

On the nature of fiduciary duties…

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Non-UTC statutes and protectors / advisorsFiduciary by default Nonfiduciary by default Trust can supersede

defaultTrust-defined or statute unclear

DE

ID (specific instances)

IL

MI

NV: “Advisors” fiduciary by default

TX

WA (treated like a trustee)

AK

SD (see note)

DE

ID

IL (may not eliminate duty of good faith)

MI (may not eliminate duty of good faith consistent with terms of trust & interests of beneficiaries)

NV

TX

GA (silent; absolves trustee from acting in reliance)

IN: trust defines role; trustee’s reliance depends on protector’s fiduciary/nonfiduciary status

NV: “Protector” powers defined in trust instrument; exercise in “best interests of the trust.”

RI (silent; but not a “qualified trustee”)

SD: “Protector” powers defined in trust instrument; exercise in “best interests of the trust.”

UT (silent)*Statutes quoted in pertinent part at slides 50-51

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• Model UTC §808:(b) If the terms of a trust confer upon a person other than the settlor of a revocable trust power to direct certain actions of the trustee, the trustee shall act in accordance with an exercise of the power unless the attempted exercise is manifestly contrary to the terms of the trust or the trustee knows the attempted exercise would constitute a serious breach of a fiduciary duty that the person holding the power owes to the beneficiaries of the trust. ***(d) A person, other than a beneficiary, who holds a power to direct is presumptively a fiduciary who, as such, is required to act in good faith with regard to the purposes of the trust and the interests of the beneficiaries. The holder of a power to direct is liable for any loss that results from breach of a fiduciary duty.

(Emphasis added)

Protectors and the UTC

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UTC default (§808):The trustee SHALL act in accordance with the exercise of the power…unless [*trustee determines] the attempted exercise (of the power to direct)...is manifestly contrary to the terms of the trust, or...the trustee knows the attempted exercise would cause a “serious breach” of a fiduciary dutythat the person holding the power (to direct) owes to the beneficiaries

UTC presumes the trustee should police the protector?

Trustee’s reliance on protector power?

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• Comment to §808 (paragraph 2):Subsections (b)-(d) ratify the use of trust protectors and advisers. Subsections (b) and (d) are based in part on Restatement (Second) of Trusts § 185 (1959). Subsection (c) is similar to Restatement (Third) of Trusts § 64(2) (Tentative Draft No. 3, approved 2001). “Advisers” have long been used for certain trustee functions, such as the power to direct investments or manage a closely-held business. “Trust protector,” a term largely associated with offshore trust practice, is more recent and usually connotes the grant of greater powers, sometimes including the power to amend or terminate the trust. Subsection (c) ratifies the recent trend to grant third persons such broader powers.

(Emphasis added)

Protectors and the UTC

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• Model UTC §105: DEFAULT AND MANDATORY RULES. – (a) Except as otherwise provided in the terms of the

trust, this [Code] governs the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary.

– (b) The terms of a trust prevail over any provision of this [Code] except:

Protectors and the UTC

BLAH BLAH BLAH BLAH…

(Nothing about trust protectors or advisors.)

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• Comments under §105:Subsection (a) emphasizes that the Uniform Trust Code is primarily a default statute. While this Code provides numerous procedural rules on which a settlor may wish to rely, the settlor is generally free to override these rules and to prescribe the conditions under which the trust is to be administered. With only limited exceptions, the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary are as specified in the terms of the trust.

(Emphasis added)

Protectors and the UTC

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• Party holding power to direct (trust protector or trust advisor) is presumptively a fiduciary (§808)

• Settlor may override the presumption in the trust document (§105)

• Settlors may have multiple parties with powers to direct

• Power holders may be either fiduciary or nonfiduciary

Net it out.

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• UTC draws distinctions in comments• Some statutes draw distinctions• Cases find “advisors” as fiduciaries (quasi-

trustee)• Statutes allow trust to define “protector” as

fiduciary or nonfiduciary• Why do we muddy the waters?

– The law allows us to define the roles. Let’s do it!

“Advisors” and “Protectors”are not synonymous

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Tailored “Default Capacity” provision

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TAILORING THIRD PARTY POWERSThe bespoke framework

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• Add beneficiaries• Consent to/approve

transactions• Consent to/approve

accountings• Change trust situs• Change governing law• Construe trust• Amend trust

• Decant trust*• Resolve/mediate disputes• Change trustee’s standard

of care• Appoint trustees• Designate successor

protectors• Grant/expand powers of

appointment

Common affirmative powers

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• Remove beneficiaries• Prohibit/veto transactions• Remove trustees• Modify/revoke powers of appointment• Modify/revoke withdrawal rights

Common negative powers

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• Quasi-trustee: “Inherent Trustee Powers” over administration that could otherwise be held by a trustee

• Quasi-judicial: “Court-type” powers, which cannot be held by the settlor, a beneficiary, or trustee without adverse tax or other consequences. (Or which cannot logically be exercised in a fiduciary capacity.)

• “Nontoxic” Powers that a settlor, beneficiary, or trustee could hold without adverse tax or other consequences, but which are given to a third party (the protector)

Categorizing third party powers

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• Advise/manage exercise of discretionary distribution by trustee

• Advise concerning distributions (timing)

• Allocate/veto allocation of gains to income

• Direct/veto sale of specific assets

• Direct/veto investment decisions

• Guide trust investments• Supervise trustee actions• Break deadlock among

trustees• Manage trust-owned

business• Vote stock owned by trust

Inherent “trustee-like”(quasi-trustee) powers

“Trust Advisor” Fiduciary powers

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• Resolve disputes concerning trust

• Modify trust provisions• Grant, revoke, modify powers of

appointment• Add / delete beneficiaries• Change nature of beneficial

interest / distribution standard• Block exercise of a beneficiary’s

right• Construe trust terms

• Terminate trust• Remove / replace trustee of APT

or self-settled SNT• Consent to exercise of powers

of appointment• Submit a trust matter for

further mediation / adjudication• Approve trustee compensation• Replace trustee upon vacancy• Approve accountings, release

trustee

“Court-like” (quasi-judicial) powers

“Trust Protector” Nonfiduciary powers

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• Designate succession of trustees• Change governing law• Change trust situs

“Nontoxic” powers

Advisor or Protector to exercise in furtherance of settlor’s intent

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• Advise/direct trustee action– Tied to ordinary administration of trust– Power to control trustee’s exercise of some power:

Investment decisionsDistribution decisions

• Cases generally consider these to be “advisor” powers• Likely held to fiduciary standard

Quasi-trustee powers

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• “Court-type” powers unlike any trustee power– Not inherently connected with ordinary administration– Exercising powers a court would otherwise hold

• Adding / changing beneficial interests, powers of appointment

• Modify trust agreement• Settle disputes

– Should not (cannot logically?) be held to fiduciary standard

Quasi-judicial powers

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HOW THEN SHALL WE PLAN?Moving forward

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• Distinguish between “advisor powers” and “protector powers”– Separate power holders or at least clearly-delineated

powers• Be judicious (and realistic) about

fiduciary/nonfiduciary nature of powers• Review, tailor trustee & protector indemnity, liability• Include methods to police the protector

– Attorney as “trust protector appointer”?

Practicing with advisors & protectors

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• Include statement of settlor’s intent to inform protector– Wealth Docx default language– Consider additional letter/statement of plan philosophy for

protector• If you separate trust advisor and trust protector roles

– Create separate articles– Separate compensation structures– Separate mechanisms for appointment?

Practicing with advisors & protectors

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• Conceivably, anyone who could qualify as a trustee could be a fiduciary protector or advisor

• Huge §§2036, 2038, 2041 concerns:– Altering beneficial interests– Authorizing distributions not limited to

ascertainable standard– Terminating trust/vesting in beneficiaries

• Argues in favor of independent party

When the Advisor is a fiduciary…

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• Individual who is– Not an adverse party– Not related or subordinate to settlor or any

beneficiary• Committee of independent individuals• Special Purpose Entities (e.g., WY, SD

LLCs)

When the Protector is not a fiduciary…

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“…an adverse party is defined as any person having a substantial beneficial interest in a trust which would be adversely affected by the exercise or nonexercise of a power which he possesses respecting the trust.”

Not an adverse party

(Treas. Reg. §1.672(a)-1)

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Any nonadverse party who is(1) the grantor’s spouse if living with the grantor; (2) any one of the following: The grantor’s father, mother, issue, brother or sister; an employee of the grantor; a corporation or any employee of a corporation in which the stock holdings of the grantor and the trust are significant from the viewpoint of voting control; a subordinate employee of a corporation in which the grantor is an executive.

Not related or subordinate party

IRC §672(c)

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• Settlor’s brother in law?– Likely lacks sophistication & objectivity

• A CPA? A financial advisor?– Do they have the disposition & savvy?

• An experienced T&E attorney?• The settlor’s attorney?

Who should be a trust protector?

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• Drafting attorney?– Your “fiduciary” duty to your clients– If protector’s action runs contrary to client’s best interests?

• At minimum, attorney likely precluded from aiding estate administration AND serving as protector

– If the attorney becomes a party to a suit?• Likely must resign as protector AND ineligible to serve in administration

• Another T&E attorney (colleague)?– Verify malpractice coverage– Secure own asset protection planning first

Who should be the protector?

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PROTECTING THE PROTECTOR

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• Carefully select governing law to apply– Jurisdictions with clearer trust protector provisions– Jurisdictions with good directed trust statutes

• Low liability exposure: Gross negligence / willful misconduct• E&O insurance?• Asset protection planning• Indemnification provisions in governing trust instrument• Risk: Identifying more than one protector; continuity of

service

Individual protectors

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• Special purpose LLC– “Special Purpose Entities” (WY, SD)

• Houses discrete functions to guide trustee• May be comprised of individuals or committees• (Is NOT a private trust company)

– Provides liability umbrella over individual actors (protector, distribution committee, advisors)

– May be easier to get E&O / D&O insurance for entity– Provides continuity when individual is unavailable

“Entity” protectors

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REMOVING AND REPLACING PROTECTORS AND ADVISORS

Bonus agenda

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• Estate of Vak v. Comm’r, 973 F.2d 1409– Grantor who could remove trustee & replace with party not related or

subordinate under §672(c) is not treated as having such control over trust as to cause estate inclusion.

• Estate of Wall v. Comm’r, 101 T.C. 300 (1993)– Grantor’s right to remove corporate trustee with another independent

corporate trustee does not encompass right to exercise powers of trustee or affect beneficial enjoyment. (Does not trigger estate inclusion.)

• Rev. Rul. 95-58, 1995-2 CB 191, 8/04/1995– Grantor’s reservation of unqualified power to remove & appoint new

trustee (other than grantor) does not cause inclusion of trust in gross estate under §§2036, 2038.

Removing & Replacing Fiduciaries

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Removing & replacing fiduciary advisor

If trust advisor or protector is fiduciary, grantor or beneficiary should (may) be shielded by Vak, Wall,

Rev. Rul. 95-58 to prevent inclusion.

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• Uncertain if Vak / Wall analysis applies

• Safe mode:– Attorney retains power to remove / replace

protector, name successor– “Protector designator” named in instrument holds

power• “The attorney for the trustee may appoint a protector…”

Removing & Replacing Nonfiduciaries

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Removing & Replacing FiduciariesPower to remove and replace retained by the grantor?

Yes

No

Is person being removed acting in a fiduciary capacity?No

Yes

No §2036(a)(2) or §2038(a)(1) concern.

Must replacement be “not related or subordinate” to grantor with IRC §672?

§2036(a)(2) / §2038(a)(1) concern; Beyond Wall logic.

No§2036(a)(2) / §2038(a)(1) concern;Beyond Rev. Rul. 95-58.

Yes

Within Rev. Rul. 95-58

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LEGAL RESOURCES

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• Belize Trusts Act (Chapter 202, Rev. 2000) §16(5): Subject to the terms of the trust, in the exercise of his office a protector shall owe a fiduciary duty to the beneficiaries of the trust or to the purpose for which the trust is created.

• British Virgin Islands Trustee Ordinance, 1961 (amd. 1993) §86(3): A person exercising any of the powers set forth in paragraphs (a) to (d) and (g) of subsection (2) shall not by virtue only of the exercise of the power be deemed to be a trustee; and unless otherwise provided in the instrument creating the trust, is not liable to the beneficiaries for the bona fide exercise of the power.

• Cook Islands International Trusts Act 1984 (amd. 1999) Part IV, §20(4): Subject to the trust instrument, a protector of a trust shall not be liable or accountable as a trustee or other person having a fiduciary duty to any person in relation to any act or omission in performing the function of a protector under the trust instrument.

Selected International Trust Protector Statutes (pertinent part)

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• (AK) AK Stat § 13.36.370 (2015): (d) Subject to the terms of the trust instrument, a trust protector is not liable or accountable as a trustee or fiduciary because of an act or omission of the trust protector taken when performing the function of a trust protector under the trust instrument.

• (DE) 12 DE Code § 3313 (2015): (a) Where 1 or more persons are given authority by the terms of a governing instrument to direct, consent to or disapprove a fiduciary's actual or proposed investment decisions, distribution decisions or other decision of the fiduciary, such persons shall be considered to be advisers and fiduciaries when exercising such authority provided, however, that the governing instrument may provide that any such adviser (including a protector) shall act in a nonfiduciary capacity.

• (GA) GA Code § 53-12-303 (2015): (c) Whenever a trust reserves to the settlor or vests in an advisory or investment committee or in any other person, including a cotrustee, to the exclusion of one or more trustees, the authority to direct the making or retention of any investment, the excluded trustee shall be liable, if at all, only as a ministerial agent and not as trustee for any loss resulting from the making or retention or any investment pursuant to the authorized direction.

• (ID) ID Code § 15-7-501 (2015): (4) When trust advisor considered as fiduciary. If one (1) or more trust advisors are given authority by the terms of a governing instrument to direct, consent to, or disapprove a fiduciary's investment decisions, or proposed investment decisions, such trust advisors shall be considered to be fiduciaries when exercising such authority unless the governing instrument provides otherwise.

• (IL) 760 ILCS 5/16.3: (e) Duty and liability of directing party. A directing party is a fiduciary of the trust subject to the same duties and standards applicable to a trustee of a trust as provided by applicable law unless the governing instrument provides otherwise, but the governing instrument may not, however, relieve or exonerate a directing party from the duty to act or withhold acting as the directing party in good faith reasonably believes is in the best interests of the trust.

• (IN) IC 30-4-3-9: (b) If the terms of the trust give a person a power to direct the trustee in the administration of the trust, except as provided in subsection (a) of this section: (1) If the person holds the power as a fiduciary, the trustee has a

duty to refuse to comply with any direction which he knows or should know would constitute a breach of a duty owed by that person as a fiduciary. (2) If the person holds the power solely for his own benefit, the trustee may refuse to comply only if the attempted exercise of the power violates the terms of the trust with respect to that power.

• (MI) MI Comp L § 700.7809 (2015): (a) Except as provided in subsection (2), the trust protector is a fiduciary to the extent of the powers, duties, and discretions granted to him or her under the terms of the trust. (2) The terms of a trust may provide that a trust protector to whom powers of administration described in section 675(4) of the internal revenue code, 26 USC 675, have been granted may exercise those powers in a nonfiduciary capacity. However, the terms of the trust shall not relieve the trust protector from the requirement under subsection (1)(b) that he or she exercise or refrain from exercising any power, duty, or discretion in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.

(Continued on next slide…)

Domestic Trust Protector Statutes (pertinent part)

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• (NV) NV Rev Stat § 163.5553 (2015): 1. A trust protector may exercise the powers provided to the trust protector in the instrument in the best interests of the trust. The powers exercised by a trust protector are at the sole discretion of the trust protector and are binding on all other persons.

• (NV) NV Rev Stat § 163.5551 (2015): If one or more trust advisers are given authority, by the terms of an instrument, to direct, consent to or disapprove a fiduciary’s investment decisions, the investment trust advisers shall be considered fiduciaries when exercising that authority unless the instrument provides otherwise.

• (RI) RI Gen L § 18-9.2-2(9)(iii) (2015): (iii) For the purposes of this chapter, neither the transferor nor any other natural person who is a nonresident of this state nor an entity that is not authorized by the law of this state to act as a trustee or whose activities are not subject to supervision as provided in subparagraph (I) of this subsection shall be considered a qualified trustee; however, nothing in this chapter shall preclude a transferor from appointing one or more advisors, including, but not limited to: (A) Advisors who have authority under the terms of the trust instrument to remove and appoint qualified trustees or trust advisors; and (B) Advisors who have authority under the terms of the trust instrument to direct, consent to or disapprove distributions from the trust. For purposes of this section, the term "advisor" includes a trust "protector" or any other person who, in addition to a qualified trustee, holds one or more trust powers.

• (SD) SD Codified L § 55-1B-6 (2015): The powers and discretions of a trust protector are as provided in the governing instrument and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the trust protector and are binding on all other persons.

• (TX) TX Trust Code §114.0031: (e) If the terms of a trust give a person the authority to direct, consent to, or disapprove a trustee's actual or proposed investment decisions, distribution decisions, or other decisions, the person is considered to be an advisor and a fiduciary when exercising that authority except that the trust terms may provide that an advisor acts in a nonfiduciary capacity.

• (UT) UT Code § 25-6-14(7)(b) (2015): (References only in passing in DAPT statute): the settlor has the authority under the terms of the trust instrument to appoint nonsubordinate advisors or trust protectors who can remove and appoint trustees and who can direct, consent to, or disapprove distributions

• (WA) WA Rev Code § 11.100.130 (2015): Whenever power or authority to direct or control the acts of a fiduciary or the investments of a trust is conferred directly or indirectly upon any person other than the designated trustee of the trust, such person shall be deemed to be a fiduciary and shall be liable to the beneficiaries of the trust and to the designated trustee to the same extent as if he or she were a designated trustee in relation to the exercise or nonexercise of such power or authority.

Domestic Trust Protector Statutes (pertinent part)

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• Provisions concerning trust protector not mandatory; default provisions may be modified by trust instrument. (UTC §105(b))

– Practitioners must verify whether jurisdiction has modified. (Most have not.)• UTC §808(d): A person, other than a beneficiary, who holds a power to

direct is presumptively a fiduciary who, as such, is required to act in good faith with regard to the purposes of the trust and the interests of the beneficiaries. The holder of a power to direct is liable for any loss that results from breach of a fiduciary duty.

Default example: WY Stat § 4-10-711. (2015): Trust protectors are fiduciaries to the extent of the powers, duties and discretions granted to them under the terms of the trust instrument. (A default, not a mandatory provision in Wyoming.)

Domestic UTC Trust Protector Statutes(Model UTC)

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AK: AS 13.36.370-375DE: DEL. CODE ANN. TIT. 12 §3313GA: O.C.G.A. §53-12-303(c)ID: 2005 IDAHO CODE 15-7-501IL: 760 ILCS 5/16.3IN: IND. CODE §30-4-3-9MI: MCLS §700.7809

NV: NV REV. STAT. §§163.5545, 163.5547, 163.5551, 163.5553, 163.5555RI: RI GEN. L. §18-9.2-2(9)(iii)SD: SD CODIFIED L. §55-1B-6, 7TX: TX TRUST CODE §114.0031UT*: UT CODE §25-6-14WA: WA REV. CODE §11.100.130

Non-UTC statutes recognizing protectors

*Although UT is a UTC state, it did not adopt §808; References protector in passing in DAPT statute

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AL: ALA. CODE 19-3B-808AZ: A.R.S. §14-10808, 14-10818AR: A.C.A. §28-73-808DC: DC CODE §19-1308.08FL: FLA. STAT. §736.808KS: KS STAT. §58a-808KY: KY REV. STAT. §8.8-080ME: ME REV. STAT. 18-B-§808MD: MD ESTATES & TRUST CODE ANN. §14.5-808MA: ALM GL CH. 203E §808MS: MISS. CODE ANN. §91-8-808, 91-8-1201MO: MO REV. STAT. §456.8-808MT: MT CODE §72-38-808NE: N.R.S. §30-3873

NH: NH REV. STAT. §564-B:8-808NM: NM STAT. §46A-8-808NC: NC GEN. STAT. §36C-8A-1-11ND: ND CENT. CODE §59-16-08OH: OHIO REV. CODE §5808.08OR: OR REV. STAT. §§130.685, 130.735PA: 20 PA CONS. STAT. §7778SC: SC CODE §62-7-808TN: TN CODE §§35-15-808, 35-15-1201-1206VT: 14 V.S.A. §808VA: VA CODE §64.2-770WV: WV CODE §44D-8-808WI: WI STAT. §§701.0808, 701.0818WY: WY STAT. §§4-10-808, 4-10-710-718

UTC-derived statutes recognizing protectors

80

ADDITIONAL READING

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• Sherby, Kathleen R. & Flash, Justin T., The Nature and Effective Use of “Trust Advisors” and “Trust Protectors” as Third Party Decision Makers (ALI-CLE Seminar Resource, March 24, 2015)

• Bove, Alexander A., Jr., Trust Protectors – A Practice Manual with Forms, Juris Publishing 2014)

• Bove, Alexander A., Jr., To Be or Not to Be – A Fiduciary, That is The Question (LISI Estate Planning Newsletter #2432, June 30, 2016)

• McClintock, Matthew T., Thinking Deeper about Protectors and Their Powers (LISI Estate Planning Newsletter #2439, July 21, 2016)

• Reimer, Christopher M., The Undiscovered Country: Wyoming’s Emergence as a Leading Trust Situs Jurisdiction (Wyoming Law Review vol. 11, no. 1, 2011)

82

• King, Al W., III, Planning Opportunities Using Domestic Trust Jurisdictions – i.e., Alaska, Delaware, Nevada, New Hampshire, South Dakota, and Wyoming (Presentation to Fusion Collaboration conference June 26, 2016)

• Grigsby, Calvin, Separable Liabilities of Trustees in Directory Trusts, (60 Cal. L. Rev. 1151 (1972))

• Sterk, Stewart E., Trust Protectors, Agency Costs, and Fiduciary Duty, (27:6 Cardozo Law Rev. 2761 (2006)) (Redistributed with permission)